Gloria Heteckery v Adrenalin Advertising & Design

### Preamble
IN THE LABOUR COURT OF ZIMBABWE
JUDGMENT NO. LC/H/466/14
HARARE ON 25th JULY, 2014
CASE NO. LC/H/170/14
AND 1 AUGUST 2014
JUDGMENT NO. LC/H/466/14
---------




IN THE LABOUR COURT OF ZIMBABWE	                          JUDGMENT NO. LC/H/466/14

HARARE ON 25th JULY, 2014			                         CASE NO. LC/H/170/14

AND 1ST AUGUST 2014

In the matter between

GLORIA HETECKERY				–	Appellant

And

ADRENALIN ADVERTISING & DESIGN	–	Respondent

Before The Honourable E. Muchawa, J.

For Appellant :	Mr T. Nyamasoka (Legal Practitioner) with Appellant

For Respondent:	Ms N. P. Timba (Legal Practitioner)

MUCHAWA, J.

This is an appeal against the determination of the disciplinary authority to dismiss Appellant with effect from the 6th of January 2014, being the date of suspension. The appeal is made in terms of Section 92D of the Labour Act [Chapter 28:01] as Respondent has no internal appeals structure.

Appellant was employed by Respondent as the Head of Client Services. She was employed with effect from 3rd January 2012 until 13th December 2013 when she was served with a letter of instant dismissal. Following a challenge to that initial dismissal through her lawyers’ correspondence, Respondent withdrew the dismissal by a letter of the 20th December 2013. She was invited back to work effective from 6th January 2014. Upon her return she was served with a letter of suspension and was charged of the misconduct of “any act of conduct or omission inconsistent with the fulfillment of the employee’s contract of employment” in terms of Section 4(a) of the Labour (National Employment Council Code of Conduct) Regulations, 2006 (SI 15 of 2006) (hereinafter referred to as “the Code” Appellant was found guilty of two of the five counts leveled against her.

The facts of count 1 were that in July 2013, Appellant had divulged to a third party, one Munyaradzi Chidzonga that Telecel, a client did not want to use him as brand ambassador because he was too political whereas the brand is apolitical. This was alleged to have led to a request by Telecel for Appellant to be removed from their account for divulging confidential information.

In the second count it is alleged that on 15th December 2013, Appellant once again divulged confidential information in respect of client Kefalos. Appellant is said to have divulged to a third party, one Josephine Mhishi that Kefalos collateral warehoused at Respondent’s premises was distributed and subjected to abuse.

In the appeal before me the following are the grounds of appeal;

The Disciplinary Authority erred in convicting on insufficient evidence particularly in overlooking the critical point that the respondent’s case was not corroborated by outside sources, thereby convicted on hearsay.

The Disciplinary Authority also failed to take into account that count 1 was resolved at the appropriate time leading to the employee being removed from the Telecel account such that convicting appellant on the same offence resulted in double jeopardy.

Further the Disciplinary Authority failed to appreciate that the alleged seriousness of the offences did not justify dismissal particularly in taking into account that there was no prejudice suffered by respondent.

The Disciplinary Authority misdirected herself by failing to appreciate the difference between an innocent disclosure and disclosure of confidential information thereby erred in failing to appreciate that the misconduct was not serious.

The Disciplinary Authority erred in ordering dismissal of the Appellant by failing to take into account the provisions of Section 7(1) of SI 15 of 2006 and as a corollary, the Authority failed to consider and give due weight to mitigatory factors as she was enjoined to do.

The Disciplinary Authority misdirected herself in merely rubber stamping the Respondent’s decision to dismiss as evidenced by the Respondent’s letter dated 13th December 2013, and e-mail dated 18th December 2013 despite evidence showing that the charges warranted a lesser penalty.

The Disciplinary Authority was biased against the Appellant in concluding that appellant was a repeart offender in regards count 1 in circumstances where there was no evidence to that effect.

The appeal is opposed. In my opinion the issues to be determined can be synthesized into the following;

Propriety of the guilty verdict in the light of the evidence adduced (Ground 1) and regard being had to an innocent disclosure and disclosure of confidential information (Ground 4).

Whether or not Count 1 had already been resolved and if so whether the hearing resulted in double jeopardy (Ground 2).

Propriety of the dismissal penalty

No prejudice (Ground 3)

Need to consider provisions of SI 15/2006 and mitigatory factors (Ground 5)

Charges warranted lesser penalty and this was rubber stamping (Ground 6)

Whether or not the disciplinary authority was biased by finding appellant was a repeat offender, as she did (Ground 7)

I will address these issues below;

Propriety of guilty verdict

Appellant alleges that the disciplinary authority erred in convicting on insufficient evidence. It argued that it was necessary to have outside sources corroborate the Respondent’s case. I was pointed to the absence of an investigation report. The failure to call the clients to testify is said to be fatal.  Reference was made to the admission by the complainant that there was no direct evidence from the clients as corroboration. It was further argued that the only inference was that calling of the witnesses would be detrimental.

Respondent’s argument is that the facts in respect to both offences were not seriously or adequately disputed. The evidence on the record including the written submission by the parties, e-mails exchanged point to this. I am particularly interested in Appellant’s summary of response filed before the disciplinary authority.

In the circumstances I find no merit in ground of appeal 1 and dismiss it as I find that the clients would not have added anything valuable to the facts to prove whether or not Appellant committed the alleged acts.

The question raised in grounds of appeal 4 regarding the need to distinguish between an innocent disclosure and confidential information is a different matter.

Appellant submitted that confidential information is information which can be regarded as part of the employee’s stock of knowledge, which a man of ordinary honesty and intelligence would recognize to be the property of the employer and not of the employee to deal with as she likes. This was distinguished from general information inevitably acquired by an employee in the ordinary course of his employment as a part of the sum total of his experience with the employer, not distinguishable by any label of confidence ( See United Sterling Corporation Ltd vs. Felton and Mannion [1974] RPC 162 as cited in The Digest Annotated British, Commonwealth and European cases 20, 1982 reissue page 281).

It is argued that the information in relation to count 2 does not fall within the class of confidential information, that is,  it is not information which a man of ordinary honesty and intelligence would recognize as the property of the employer. Appellant further argues that as Head of Client Services it was her duty to respond to a client’s demand for an explanation as to why their collateral was not being released. Appellant therefore says she was merely discharging her duties in divulging the true state of affairs to the client who had an interest in the matter and a right to the information given. Appellant feels she is being crucified for upholding the Respondent’s value of honesty and that no standard had been set for her to follow and the complainant failed to set this out even at the hearing.

Respondent’s submissions are that what was happening with the collateral was confidential to Respondent.  It is argued too that the divulging of this information to one Josephine Mhishi who was the representative of Kefalos, the client was a disclosure to a third party. Further it is argued that clients need to trust Respondent and divulging of such information destroys such trust.

I find that divulging of information to the representative of the client is not disclosure to a third party as a company is necessarily represented by a person.

Further, I find too that the information disclosed does not fall under the label of that which a man of ordinary honesty and intelligence would recognize to be the property of the employer only. It is highly likely that in discharging her duty and working to build trust between Respondent and client Kefalos, Appellant reasonably thought telling the truth would serve this purpose. There is evidence on record of a stock taking of the collateral which had established that four note pads were missing as well as ten pens and that Appellant had duly informed the complainant who had directed that there be movement of the collateral to her office.

I therefore find that Appellant was wrongly found guilty in respect to Count 2 and uphold ground of appeal 4.

Whether the guilty verdict and sentence in respect of count 1 amounts to double jeopardy

Appellant argues that the count 1 issue in respect to Telecel was resolved at the appropriate time when she was removed from handling the Telecel account. The subsequent conviction is said to result in double jeopardy. This is said to be particularly so as the facts giving rise to the charges arose in July 2013 and the disciplinary proceedings were commenced in January 2014.

I was referred to Section 70(1)(m) of the Constitution which provides;

“Any person accused of an offence was the following rights not to be tried for an offence in respect of an act or omission for which they have previously been pardoned or either acquitted or convicted on the merits.

It was additionally argued that bringing count 1 up five months down the line is inconsistent with Section 3 of the Labour (National Employment Code of Conduct) Regulations 2006, SI 15 of 2006 which states as one objective in subsection (b) the need to ensure consistency and prompt action by responsible official on issues concerning discipline.

Respondent states that Appellant did divulge confidential information to a third party when it was not necessary to do so. It was information which third parties were not aware of.

The removal of Appellant from handling the Telecel account is said to have been at the instigation of the client, Telecel. Respondent is said not to have resolved this issue, hence the disciplinary proceedings. Further it is argued that Respondent is well within its rights to bring disciplinary proceedings at this stage.

It is my considered view that the reason the law enjoins an employer to ensure prompt action as an administering official on issues concerning discipline is to ensure that parties are certain of their status once an alleged act of misconduct has come to the attention of an employer. It is not surprising therefore that Section 6 of the National Employment Code, SI 15 of 2006 actually provides that where an employer has good cause to believe an act of misconduct has been committed, they shall forthwith suspend the employee and within fourteen working days investigate the matter and conduct a hearing into the alleged misconduct.

In the case of ZESA vs. Bopoto 1997 (1) ZLR 126 (SC) the Court had the opportunity of considering the meaning of the words “forthwith” where regulations under consideration had the same wording as Section 6 of the National Code of Employment. It was held that “forthwith” means as soon as is reasonably possible in the circumstances. A delay of nearly four months between the suspension and an application to terminate was held to inordinate.

In casu the circumstances of the case were that the client was enraged to the extent of requesting Appellant to be removed from the account. Respondent should have immediately instituted disciplinary proceedings if it considered the measure suggested by the client and implemented by it, inadequate. It is my finding therefore that Respondent already addressed the count 1 misconduct and any purported disciplinary hearing on the same count coming some five months later is inordinate and intolerable. It seems from the facts of the matter, count 1 was added as an afterthought to cast the net wider. Ground of appeal 2 succeeds therefore.

Because of my findings on appeal grounds 4 and 2, it is my view that Appellant was wrongly found guilty in respect of both counts 1 and 2. In the circumstances there is no need for me to consider the propriety of the dismissal penalty (Grounds of appeal 3, 5, and 6) and Ground 7 relating to whether or not the disciplinary authority was biased as alleged).

I need to make an observation relating to the submissions by Respondents Counsel that the appeal should have been founded on a point of law. She referred me to various authorities for that.   I find that the test laid out for me relates to an appeal in terms of Section 98(10) of the Act, that is , an arbitral award and not to this appeal done in terms of Section 92D against a determination made under an employment code.

Accordingly;

The appeal succeeds

The determination of the disciplinary authority is set aside and substituted as follows:

“Appellant be and is hereby reinstated into her former position without loss of salary and benefits from date of unlawful dismissal. In the event that reinstatement is no longer tenable, the Respondent should pay damages in lieu of reinstatement, the quantum of which is to be agreed by both parties. If the parties cannot agree on the quantum, either party can approach this Court for quantification.”

Atherstone and Cook – Appellant’s legal practitioners

Kantor and Immerman – Respondent’s legal practitioners